Citation: Sutherland v R [2016] NSWDC 266
Court: District Court of New South Wales
Date: 7 June 2016
Judge: Neilson DCJ
Background
The appellant, a young woman aged 18 at the time of the offence, pleaded guilty in the Local Court to assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900. The offence occurred in the early hours of a Sunday morning at a hotel in Miranda. Following a dispute over an unreturned cigarette lighter, the appellant confronted another patron and punched her in the face with a closed fist, causing the victim to fall backwards and strike her head. The victim was treated at hospital for concussion and sustained bruising and swelling to the back of her head.
The appellant had a history of diagnosed mental illness, including borderline personality disorder, depression, and anxiety. At the time of the offence, her medication was being adjusted by her treating doctor and she had consumed alcohol, which she acknowledged would affect the efficacy of her medication. She had also recently been informed she was born without a uterus.
The Local Court imposed a 15-month sentence of imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, with conditions including community corrections supervision and psychological treatment. The appellant appealed that sentence as excessive and also sought to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990.
Legal Issues
- Whether the Local Court's suspended sentence of 15 months imprisonment was excessive in all the circumstances.
- Whether the appellant should be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 on the basis that she was suffering from a mental condition at the time of the offence.
- What weight should be given to the appellant's mental health history, youth, prior good character, and the limited medical evidence of the victim's injuries when determining the appropriate sentence.
Decision
Neilson DCJ accepted that the appellant was suffering from a mental condition for the purposes of s 32(1) of the Mental Health (Forensic Provisions) Act 1990. However, his Honour declined to divert the matter under that provision, concluding it was more appropriate to deal with the appellant according to law. The decision to proceed to sentence was influenced by the nature of the offence and the circumstances surrounding it.
On the question of the s 32 application, the court noted the absence of direct evidence from treating medical practitioners and acknowledged the limits of what could be established from the psychologist's report alone.
Turning to the severity appeal, Neilson DCJ found the 15-month suspended sentence excessive. Key factors included the absence of any direct medical evidence quantifying the extent of the victim's injuries, no evidence of ongoing harm suffered by the victim, the appellant's young age, her prior good character, her recent and serious mental illness diagnoses, and her recently disclosed physical disability. The court acknowledged the importance of both specific and general deterrence but noted the risk of overreaction to acts of this kind.
His Honour also noted reservations about the depth of the appellant's remorse. The pre-sentence report indicated she tended to attribute partial blame to her medication change and alcohol consumption, and her letter to the victim expressed regret for the victim's need for treatment rather than for the assault itself. Nonetheless, the overall sentencing picture supported a less severe outcome than a suspended full-time custodial term.
Orders Made
- The sentence imposed by the Local Court on 3 March 2016 was set aside.
- The appellant was ordered to enter into a good behaviour bond for 18 months under s 9 of the Crimes (Sentencing Procedure) Act 1999, on the following conditions:
- Appear before the Court if called upon to do so at any time.
- Be of good behaviour.
- Reside at a specified (redacted) address.
- Notify the Court Registrar by prepaid registered post of any change of residential address during the bond.
- Report to the officer in charge of Community Corrections Service at Liverpool within seven days.
- Accept supervision and obey all reasonable directions of Community Corrections for the bond period.
- Continue psychological treatment with her current treating psychologist until discharged, or commence treatment with any psychologist to whom she may be referred by her general practitioner.
Key Takeaways
- A full-time custodial sentence (even when suspended) may be excessive where the offending is a single punch, direct medical evidence of the victim's injuries is absent, and the offender is a very young person labouring under diagnosed serious mental illness and other personal adversity.
- Under s 32 of the Mental Health (Forensic Provisions) Act 1990, a court may accept that an offender suffers from a mental condition for the purposes of the section yet still conclude it is more appropriate to deal with the offender according to law rather than divert the matter.
- Borderline personality disorder, including its features of affective instability, difficulty controlling anger, and impulsivity, can be a relevant factor in both the s 32 analysis and the broader sentencing exercise, though it does not automatically reduce a sentence or warrant diversion.
- Doubts about the sincerity of an offender's remorse, including where an apology focuses on consequences for the victim rather than the offending conduct itself, remain a relevant consideration in assessing character and mitigation.
- Where a sentencing magistrate's reasons have not been transcribed and are unavailable on appeal, an appellate court must assess the appropriateness of the sentence from the record available, without the benefit of the sentencing judge's reasoning.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases:
- Pattalis v R [2013] NSWCCA 171